On the boundaries of religious freedom

On Sept. 6, Amy Coney Barrett, a law professor at Notre Dame, appeared before the Senate Judiciary Committee as an appellate court nominee. In her questioning, she faced what has been dubbed a “religious test” — or nothing short of an inquisition — by Democratic senators. During her hearing, she refused to discuss the impact of her Catholic faith on her role as a judge.

Barrett provoked the ire of Sen. Dianne Feinstein, ranking member of the Senate Judiciary Committee, who suggested that Barrett’s Catholic background may color her interpretation of the law. Feinstein’s ad-hominem claim that “the dogma lives loudly within you” was supposedly a denunciation of Barrett’s position that the 1973 Supreme Court case Roe v. Wade, legalizing abortion in all 50 states, was incorrectly decided. Feinstein, a notable supporter of abortion rights, had previously asked Supreme Court Justice Neil Gorsuch if he would deem Roe an irreversible “super precedent.” President Eisgruber has since responded with a letter to Feinstein and Senate Judiciary Chairman Chuck Grassley, expressing his concern that their line of questioning and probing of Barrett’s personal faith, rather than her legal expertise, had threatened her religious freedom. It may be easy to condemn and villainize Feinstein and her colleagues, but it may also serve us well to acknowledge the tricky position that the senators face and to consider the larger basis for their concerns.

Several Senate hearings in the past year — including Sen. Bernie Sanders' questioning questioning of Russell Vought, President Trump’s nominee for deputy director of the Office of Management and Budget — have danced around an all-out religious test of public servants. However, Barrett’s hearing isn’t another liberal attempt at enforcing political correctness run amuck. Instead it’s a significant milestone in the unmasking of the darker underbelly to the partisan debate on what actually constitutes religious freedom in the eyes of the law. After all, while it’s unarguably vital that our government respect constitutional freedom of religion, there is also something to be said for taking into account the partiality that any religious background confers on one’s interpretation of fundamental morality.

If a perfect separation of church and state is to be achieved, then it follows that anyone who openly states their moral position based on a religious conviction should recuse themselves when deciding upon laws that evaluate the moral positions of all citizens, in order to avoid favoring those who share their stance. Ideally, our government would ensure that those wielding political power are impartial enough to make somewhat utilitarian decisions, crafting laws that provide the greatest good for the greatest number of citizens.

Feinstein’s comments only underscore much of the American public’s suspicion regarding legal impartiality when it comes to non-Protestant religious figures and especially Catholics in public office, a stance that began with President John F. Kennedy. These uncharitably reflect the misconception that someone who is personally tied to a religious position is too insular to care about the collective well-being of a majority outside their faith. They also speak to an commonly circulated liberal concern — underscored by the efforts of left-wing groups including the Alliance for Justice — that conservative Christian politicians and legal scholars must be using their professional work to dismantle decisions such as Roe v. Wade that they personally oppose on religious grounds.

The explicit references to Barrett’s Catholicism during her hearing clearly suggest that there is still a strong anti-Catholic bias in American politics. She should never have been so bluntly chastised for not agreeing with traditionally Democratic positions. So long as someone with her vantage point recognizes that there may be certain landmark decisions that are necessary to ensure the rights of others, and does not attempt to leverage her personal opinion to impinge on these rights, who is to say that she cannot entertain her own private beliefs, religiously motivated or not?

However, for what it’s worth, it is no simple feat to accurately decipher the slim dichotomy between a religiously motivated position that one uses to bolster their interpretation of the law versus an internally held personal view that serves as a private but not professional creed for what is right and what is wrong. For example, this past February, the Washington Supreme Court ruled against Barronelle Stutzman, a florist who invoked constitutional religious freedom to justify her unwillingness to provide flowers for a gay customer’s wedding. The gaping chasm in public opinion between the positive reaction to the Court’s decision and present censure of Feinstein only further evinces the futility behind any attempt at objectively evaluating when religious freedom is a valid justification for discrimination. Thus, while we may safely agree that Feinstein overstepped constitutional boundaries, we can also acknowledge that the root of her concerns about the separation of church and state has yet to fully be addressed within our current legal system.

Hayley Siegel is a sophomore from Princeton, N.J. She can be reached at hsiegel@princeton.edu